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Glenn Greenwald on Indefinite Detention

I expected to spend quite some time writing about the Obama administration’s successful appeal against Katherine Forrest’s historic gutting of the indefinite detention provision of the NDAA. Yet I can add very little to Glenn Greenwald’s summation:

In May, something extremely rare happened: a federal court applied the US constitution to impose some limits on the powers of the president. That happened when federal district court judge Katherine Forrest of the southern district of New York, an Obama appointee, preliminarily barred enforcement of the National Defense Authorization Act (NDAA), the statute enacted by Congress in December 2011 with broad bipartisan support and signed into law by President Obama (after he had threatened to veto it).

That 2011 law expressly grants the president the power to indefinitely detain in military custody not only accused terrorists, but also their supporters, all without charges or trial. It does so by empowering the president to indefinitely detain not only al-Qaida members, but also members of so-called “associated forces”, as well as anyone found to “substantially support” such forces – whatever those terms might mean. I wrote about that decision and the background to this case when it was issued.

What made Judge Forrest’s ruling particularly remarkable is that the lawsuit was brought by eight journalists and activists, such as former New York Times reporter Chris Hedges, Daniel Ellsberg, Noam Chomsky, and Birgitta Jónsdóttir, who argued that their work, which involves interactions with accused terrorists, could subject them to indefinite detention under the law’s broad and vague authority, even for US citizens on US soil. The court agreed, noting that the plaintiffs presented “evidence of concrete – non-hypothetical – ways in which the presence of the legislation has already impacted those expressive and associational activities”. The court was particularly disturbed by the Obama DOJ’s adamant refusal to say, in response to being asked multiple times, that the law could not be used to indefinitely detain the plaintiffs due to their journalistic and political activities.

These new powers have nothing to with combatting terrorism. If the government has no evidence that can stand up in a court of law it has no business detaining anyone. No, this new power grab has an entirely different target — like the plaintiffs in this case: writers, investigative journalists, bloggers, philosophers, dissidents, human rights activists, libertarians, free-thinkers, tax protestors, critics of fractional-reserve banking, whistleblowers — people like Chris Hedges, Noam Chomsky, Daniel Ellsberg, Jennifer Bolen, and Birgitta Jonsdottir. People like Congressman Justin Amash and Congressman Adam Smith who tried to amend indefinite detention out of the bill. People like me — and to some degree, if you are reading this, people like you.

The fact that the Obama administration could not give assurances about those who simply criticise U.S. foreign policy indicates very strongly that this power grab is about shutting-up and frightening critics of the U.S. government and the Obama administration.

But — for now — §1021 of the NDAA, that implement of fascism, has been struck down and thrown out as “facially unconstitutional” as well as having a “chilling impact on First Amendment rights”.

We should thankful for this brave judge’s actions, and for the plaintiffs actions in standing up to tyranny, and vigilant against future incursions.

On the other hand, every politician involved in writing, legislating and authorising this hideous unconstitutional law should be reminded of the words of the Declaration of Independence — it is the right of the people to alter or abolish any government that becomes destructive to liberty.

And last week, Katherine Forrest demolished the Obama administrations protestations once again:

Last week, Judge Forrest made her preliminary ruling permanent, issuing a 112-page decision explaining it. Noting that the plaintiffs “testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention”, she emphasized how dangerous this new law is given the extremely broad discretion it vests in the president to order people detained in military custody with no charges:

The court also brushed aside the Obama DOJ’s prime argument, echoing the theories of John Yoo: namely, that courts have no business “interfering” in the president’s conduct of war. After acknowledging that the president is entitled to deference in the national security realm, Judge Forrest dispensed with the Obama DOJ’s claim with this vital observation: one that should be unnecessary but, in the 9/11 era, is all too commonly ignored:

In other words: while the president is entitled to deference in his conduct of war, he’s not entitled to wield the power to order people, including American citizens, indefinitely imprisoned in military detention. Regardless of how he claims he intends to exercise this power, the mere act of vesting it in him so chills the exercise of first amendment and other protected rights that the constitution can have no meaning if courts permit it to stand.

Yet the Obama administration, it seems, does not like the Constitution:

In response to this ruling, the Obama administration not only filed an immediate appeal, but they filed an emergency motion asking the appeals court to lift the injunction pending the appeal. Obama lawyers wrote a breathless attack on the court’s ruling, denouncing it as “vastly troubling” and claiming that it “threatens tangible and dangerous consequences in the conduct of an active military conflict” and “threatens irreparable harm to national security”.

While the Bush and Obama DOJs have long absurdly interpreted the 2001 AUMF to apply to this broader range, and while some courts have accepted that interpretation, the law itself vested no such power. The NDAA did. That is why civil liberties groups such as the ACLU denounced Obama’s signing of it so vociferously, and it is why the Obama DOJ is so horrified, obviously, by the prospect that it will be invalidated: precisely because it so drastically expands their detention power. Both the court’s ruling and the Obama DOJ’s reaction to that ruling prove that the NDAA does indeed provide the president with significantly enhanced authority of indefinite detention.

Greenwald draws a brilliant and frightening parallel:

On the very same day that the Obama DOJ fights vigorously in US courts for the right to imprison people without charges, the Afghan government fights just as vigorously for basic due process.

Remember: the US, we’re frequently told, is in Afghanistan to bring democracy to the Afghan people and to teach them about freedom. But the Afghan government is refusing the US demand to imprison people without charges on the ground that such lawless detention violates their conceptions of basic freedom. Maybe Afghanistan should invade the US in order to teach Americans about freedom.

This development should be deeply troubling for all Americans, and all of us who believe that the values of the American revolution — freedom of speech, liberty, representation, due process — should be a light unto the world.

55 thoughts on “Glenn Greenwald on Indefinite Detention”

I tweeted a response to your early view of Glenn Greenwald which shows that Obama is getting the indefinite detention placed in US Civil Code and out of US Military Code. He is then getting the indefinite detention overturned. He is filing appeals now so that the appeals cannot be filed by Romney if he is defeated in November. His appeals will fail because as the article says they are vague and overly broad.

Read the article closely to find out what Obama’s final plan is. The last paragraph explains.

Yes — that is what the NDAA does. President had the power of indefinite detention under the AUMF(2001) over foreign combatants. NDAA puts it into domestic law. Though given that Romney supports the NDAA, I don’t think Romney removing it would be an issue.

“When President Obama signed the 2012 NDAA (a necessary bill to keep the military functioning), people decried that it contained an affirmation for these provisions. It even was discussed that Obama insisted that this language be put into the bill. This of course turned a large section of civil liberty advocates against him.

But then, once signed, suddenly those provisions were part of US Civil Code, moved there from military code due to the new language which Obama insisted be included.

Before the case was even decided, the administration made a fruitless appeal to overturn the injunction, hurting their chances for any appeals after the case.

In issuing her judgement Justice Forrest called the Obama defense “vague” and “overly broad.” She concluded “The government has not stated that such conduct – which, by analogy, covers any writing, journalistic and associational activities that involve al Qaeda, the Taliban or whomever is deemed “associated forces” – does not fall within § 1021(b)(2)”

Not that they did not make a good enough case, but that they did not even make a case at all.”

Now for the important part.

“The Obama administration, with the clear and obvious option to at least drag out the case, failed to even try. And they used an appeal already, on August 6th. Had they not done so, should the President be defeated in November, the new President would have been within the window in order to file an appeal based on the judgement date of the case, which would have been on February 12th of next year. Instead, that window closes on January 6th, due to this earlier action, closing the window for appeal before the end of President Obama’s first term.”

Yes, Jimbo — the world is flat, the moon is made of green cheese, and Romney is a “globalist* Nazi”.

Nazis were fanatical, racist, murderous, cruel, absolute-power worshiping despots. They, along with Communist regimes under Stalin and Mao, were the antithesis of democracy, personal rights/liberty, unselfishness, and Christian love/charity/mercy/tolerance — the characteristics that make Romney exceptional among politicians.

* You will have to explain how Nazis are “globalist”. They were intensely nationalistic. They may have dreamed of conquering the globe, but not trading with other nations/races nor mixing with them as brothers.

voting 3rd party is a vote for the one in front. If you don’t like that choice then vote for the better of the 2. Until a 3rd party is a real contender, a 3rd party vote is a vote for the one you really don’t want!!! Protest some other way that will have a direct impact!!!

Flip (Oct 07 @ 12:49:49): An Amen and reminder. In 1992 millions of us naive/idealistic/optimistic Americans voted for Ross Perot. We elected the Clintons, whose corruption evoked a leading Democrat’s “My party has been hijacked by gangsters!”

The only ones that can make a 3rd party relevant are “We the People”. Too many Sheeple are buying this line of garbage from the duopoly Presstitutes that a vote for a 3rd party is a throw-away vote. I’m voting for Johnson; once the Libertarian Party hits 5% of the national vote, big things start to happen for 2016. Your vote on Nov 6th is ALL about the future of alternative parties

Provided Americans don’t arrogantly act, they are quite welcome and fit in quite well with Australians. Australians have a habit of mocking each other. This banter is seen as fun and actually shows they like you. In Australia we have a culture of cutting down people who act all mighty etc. For example handing out Business Cards before establishing very friendly relations (socialising, establishing rapport then departing before saying oh btw here is my card) is seen as pretentious.

I would relish the fact that freedom loving USA citizens make a new home in Australia. We need your entrepreneurial skill and value for democracy.

The reality is US citizens won’t leave and I think they will fight for the establishment of a new State. The more I read about the Civil War, the more I see parallels today and less about the issue of slavery.

I think honest people in power would just say…TOUGH..we rule over you..get over it and accept it. However they are not honest and cannot afford to be..so they will say these laws are for your own good and security…we care for our way of life and want to preserve it…while they de facto and de juro undermine and degrade it. Its George Orwell’s “peace is war” degradation of language and liberty. In Star Wars the more recent George Lucas films the same process is fictionally dramatised.

The French Revolution had moderates who were later forced out and killed by the more extremist Jacobin who unleashed their Terror…this process is built into the structure of the modern state, is dormant and can be activated at any time. We need to remember Obama is just a man…like any other man..he is not special and his opinions and actions are no more enlightened than any other…why should men like him have this special power? Why should we even listen to their views and opinions? They are irrelevant and must be told so by everyone. It is because people believe these myths surrounding these people that they are listened. When they talk…it is one man talking and if everyone accepted this…no one would listen to him or hand over their will to him.

robc: Your first sentence describes the pre-eighteenth (+/-) century western monarchies, in which few people could or would attempt to disperse power. But, as in your historic and fictional examples (with the notable omission of the American revolution), times have changed, and despots need to fool — charm, bribe, brainwash, agitate, etc. — the mob into envy, fear, hate and revenge against a real or imagined rival. In a desperately impoverished nation, Hitler and the Nazis pulled it off beautifully. In the near-medieval backward Sheik-ruled Arab world, patient Muslim theocrats have cobbled together an “army” capable of World War IV jihad. Obama is squarely in this tradition of an elite with a mob “handing over their will to him” as you so brilliantly put it!

While I’m not competent to follow the legal twists and turns, the Forrest, Greenwald, Aziz position seems right. And any wide-awake American can certainly attest that “the Obama administration does not like the Constitution”!

It’s funny you should say that Obama doesn’t like the Constitution. I did a post on my blog about two months ago that details Obama’s shameful record on the Constitution. I was quite shocked as I compiled the list from previous posts and other stuff I’d missed at the times. Truly horrifying stuff. And we thought George W. Bush was bad.

Tim: would you please repeat that post here, or at least give us a link? Some of these guys intend to help elect Obama by voting for Johnson — repeating the tragic mistake I made in 1992 voting for Perot!

Hello Tim. I am an Australian Citizen so forgive me if I don’t understand the nuances of the US Constitution.

I believe at the time of the framing of the Constitution, like any law it was done within a spirit, that is impossible to read in this day and age. Using literal interpretation can be quite dangerous. Who is more powerful. The Executive or the Judiciary? If the Constitution trumps all as it is seen as the “Word of God” i.e. founding fathers intent, could the founding fathers envisaged today’s world? Progress was very slow back then.

If the people do not have any power, because the Constitution limits them, does revolution by the people override the Constitution? If you say no, because the Powers in charge “herd” opinion and dissent within a framework that suits them, then we are living in a Dictatorship.

In Australia, our forced voting system keeps Politicians and the law in check, without a Constitution, because voters are not so “Party Faithful” and can swing very easily. This puts the fear of God in Parties and Politicians.

If this law was passed in Australia, Independents would gain that many seats on a platform of “retribution”. Our Politicians would be stripped of all entitlements, a law passed to seize their assets, and possibly deny them welfare. They would be forced to beg.

Thanks, Tim, for the link and its content. I think that the Supreme Court unanimously disallowed the “individual mandate”, even though allowing the penalty as a “tax”, showing that even a “conservative” (NOT “strict constructionist”) justice (Rogers) likes to go with the Congressional flow if a contorted way can be found to allow it. More anti-Constitutional executive orders (probably after your blog was written) need to be cited. Obama’s unprecedented (?) lawsuits against sovereign States for enforcing federal border security laws and for ballot security, are atrocious (both obvious assaults on honest elections). Department of Justice blatant racial discrimination, gun-running, lawsuits to block energy development, refusal to comply with subpoenas, etc. should be prosecuted — but won’t be while Obama is president. Re judicial powers over non-citizens: I think that the Constitution awards no rights (not considering ethics) whatsoever to non-citizens. Am I wrong?

Backwards, WHO is “losing control of the economy”. Certainly not the Obama government as it takes over healthcare, banking, autos, energy, agriculture, etc.

Dennis, WHERE are you going to find a “next one after Obama” who “will be no better, but probably worse”??????? We’ve have some poor presidents — LBJ, Nixon, Carter, the Clinton co-presidents, but Obama is Marxist, Muslim, racist and a corrupt thug. An Obama dictatorship for life is far more likely!

I’ll probably try to do an update in a couple weeks to include the stuff I missed and new events.

It’s an interesting dilemma. I think it depends on what exactly you’re referring to as ‘rights to non-citizens’ in this context. On one hand, there’s a school of thought that says the 5th Amendment applies beyond just citizens of the US and to all people. Note the use of the word ‘person’ versus ‘citizen’ in the 5th Amendment.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.”

On the other hand, the 14th Amendment is noteworthy for its interchanging of ‘citizen’ and ‘person’ below.

“All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”

If Obama gets a second term you can expect martial law to be put in place. Obama care will
order a chip put into your body. (remember the mark of the beast quoted in the bible?) There are other things that you should know too. We will have internment camps to hold all you
fellow citizens too. Most of you should bone up on history, maybe see some things that I
helped kill off many years ago. 1944. This may be the last election my country will ever see
again.

Sodbuster, the generation today are too dumb to even know what occurred before World War II, yet alone to know what the Constitution stands for. Yes, Obama and his Islamists/Communists do know and they control the guns and police. I hope you have another country to escape to.

Obama et al will try — are already getting away with everything they can. Do Americans remember that Hitler and a Nazi legislature were democratically/legally elected, after which the legislature legally legislated ABSOLUTE POWER to Chancellor Hitler? I bet the Obama Communists/fascists remember!

There’s a spat between governments currently over some Islands; parties include government officials ranging from America to China and many I suppose less influential government officials in between acting on behalf of smaller nations…But despite all the bluster, I doubt still that a clear list of names concerning the particular claimants over said Islands could even be written up, as things currently stand.

So what about a joint-stock company? Adjudicated over by a force comprising selected people from said national armies of all involved in this dispute over property? China and the US cannot war because of mutually assured (economic) destruction; each nation would need tax its richest citizens producing a quick flight into grey economic zones not easily taxable.

Nowadays, when nations start disputing territories, the solution is to draw up joint-stock companies overseen by an independent third international part (perhaps the WTO?) to privatise said territories; so that at least people know who exactly is said to own what.

For some reason, a reply icon isn’t showing up in your above reply to me, so I’ll try my best to address those interesting questions of yours here.

The US Constitution was written not so much to limit the power of the people, but to limit the power of the government. Take the 1st Amendment, for example.

“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.”

You’ll see that it’s written to limit the power of the government (“Congress shall make no law[…]”) rather than to define the rights of the people (“The people have the right to free speech, etc.”). There’s very little in the Constitution that truly limits the rights of the people. It’s more or less a fundamental governing philosophy of the document that says that people’s rights come not from their government, but their inherent humanity. This is the general orientation of the document and is captured quite well with the 10th Amendment.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.”

As to whether we can read it today, again, using the 1st Amendment as an example, free speech then is the same as free speech now. Whether it takes the form of a newspaper, radio show, TV show, the interwebs, etc. doesn’t really matter because the principle is the same regardless of technology. Freedom peaceably to assemble is the same today as it was back then, whether we assemble in my back yard or we assemble on Aziz’s blog. The document does well at withstanding the test of time in this sense. For harder questions, we can assess the original intent of what the Founding Fathers meant when they wrote it by referring to historical records such as the Federalist Papers.

The Constitution does say it’s the supreme law of the land in Article VI (see below), but it generally limits what the government can do rather than what the people can do.

“This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”

Because of the way the document is focused, on limiting the government’s powers rather than limiting the rights of the people, I think it’s a very tricky question to ask whether popular revolution would override the Constitution per se. It may be more appropriate to say that popular revolution could uphold rather than override the Constitution because the government is breaking through the limits imposed on it by the Constitution and the people would, hypothetically, be working to confine the government to those limits.

Hopefully I’ve given you a response appropriate to what you’re wondering. 🙂

From the Declaration of Independence through the Constitution and its first ten Amendments (“The Bill of Rights”), the Founders of the United States of America labored and debated vigorously to articulate fundamental principles and workable procedures in simple and enduring language. There are no nuanced or transitory meanings. Literal interpretation is valid (see Tim’s following comment on free speech and assembly) — where not, it has been or will be amended for clarity and update. The self-contained amendment provisions prove that the Constitution is not meant to be “seen as the Word of God”.

Your other questions: The three “branches” (Legislative, Executive and Judicial) are equal, in that all have independent (though interacting) powers. Amendment IX provides that people (citizens as individuals) “retain” ALL power (“RIGHTS”), except those specifically “delegated to the United States by the Constitution” per Amendment X*. The Constitution could be legally “overridden” by amending it out of existence, piece by peace or at one stroke. I presume that conquest by revolution or invasion could result in anything. No doubt mandatory voting would bring positive as well as negative changes.

“Pocket” books of the Declaration of Independence and Constitution are available @ http://www.cato.org. They are quite inexpensive mailed to U.S. addresses, and hopefully elsewhere.

* Amendment X (quoted in Tim’s post) allocates and denies powers to “the States respectively” as well. With Amendment X, the Constitution delegates specified powers to the federal government, prohibits States from certain powers, i.e.issuing currency, and reserves all other powers to the States or to the people. Each State has its own constitution, which exercises power over its citizens, exclusive of powers (i.e., denying women the right to vote) prohibited by the (federal) Constitution.

Tim (Sep 20 @ 20:39:23):

Just a nit-pick or two. I would lead off with “The Constitution limits the POWERS of the government and protects the RIGHTS of the people, consistent with the Declaration of Independence: “Men (PEOPLE) are endowed by their Creator with certain unalienable RIGHTS — that to secure these rights, GOVERNMENTS are instituted among men, deriving their just POWERS from the consent of the governed”.

Include discussion of the 9th amendment.

The Constituion specifically (not “geneerally”) limits the powers of the federal government.

Don, good catches. I would add, however, that the Constitutional balance of the branches has been drastically eroded, particularly over the past century. The Executive branch has gained tremendous power at the expense of the Legislative and Judicial branches. Today, there’s a clear deference shown at times toward the Executive branch from either of the other two branches. FDR’s presidency was really the turning point.

Buddy, yes, this is the key philosophy. There are a couple problems, though.

One, there’s been a long-running debate about how to actually interpret the Constitution. The strict interpretation says the government can only do what it is explicitly empowered to do, but the loose interpretation says the government can do anything it is not explicitly forbidden from doing. This debate has existed since the beginning and, over the past century or so, I’d say the loose side has been clearly and consistently winning.

Two, there’s the ‘living document’ question. How does the Constitution cope with the passage to time? Do we apply the original intent and interpretations or do we reinterpret the document for the times? How significant is precedent? In the 1st Amendment example above, we adhered to the original principles and intent while applying them to today’s technology rather than trying to reinterpret the 1st Amendment in terms of today’s technology. In essence, do we try to fit the times to the Constitution or do we try to fit the Constitution to the times? Personally, I see a bias toward the latter over the past century, which usually erodes the power of the Constitution rather than strengthens it.

Tim re your post of Sep 21 in reply to my post of Sep 21: Yes — sadly the de facto power of the Executive vs. the Judicial and especially the Legislative has indeed grown. Ditto and even more sadly has loose construction increasingly dominated strict construction.

The Constitution itself provides remedies to the above and to the “living document” trap: AMENDMENT. But the amendment process, designed to avoid both transient mob psychology and manipulation by less than all levels of government, is too inconveniently slow and uncertain for ambitious politicians.

Government officials – worldwide – are in the uniquely fortunate position right now to make gigantic capitalisations on their official positions by entering into agreements amongst themselves to privatise various plots of land; one wonders why on Earth they would waste time running after random people opposed to merely accepting their fortuitous existence during a particularly profound period of globalization.

The irony is that the Democrat Congress has been voting 4 to 1 to protect individual
rights under the constitution versus the Republicans lately, so why is Obama voting
to sell our citizens to the military police state without public trial for being suspect of
terrorist activities. Even under current law we have more people in prison than any
other country in the world, and lifetime sentencing for repeat behavior that is not
life threatening filling the private for profit prison system.

The Washington Post says that these decisions “represent the first time that the administration has clarified how many detainees it considers too dangerous to release but unprosecutable because officials fear trials could compromise intelligence-gathering and because detainees could challenge evidence obtained through coercion.” Once that rationale is accepted, it necessarily applies not only to past detainees but future ones as well: the administration is claiming the power to imprison whomever it wants without charges whenever it believes that — even in the face of the horrendously broad “material support for terrorism” laws the Congress has enacted — it cannot prove in any tribunal that the individual has actually done anything wrong. They are simply decreed by presidential fiat to be “too dangerous to release.” Perhaps worst of all, it converts what was once a leading prong in the radical Bush/Cheney assault on the Constitution — the Presidential power to indefinitely imprison people without charges — into complete bipartisan consensus, permanently removed from the realm of establishment controversy.